OSHA increases its emphasis on accurate recordkeeping

Now more than ever, it's important to dot the i's and cross the t's when it comes to reporting your employees' workplace injuries and illnesses. Recently, the Occupational Safety and Health Administration (OSHA) began sending inspectors to company offices and worksites to assess the accuracy of their injury and illness records.

Under this new National Emphasis Program (NEP), which began in October, 2009, inspectors are targeting companies in certain industries to review records, interview employees, and conduct limited inspections. Facing criticism that it has failed to accurately track the rates at which U.S. workers get hurt or sick on the job, OSHA is treating the NEP as a pilot program to see if it can effectively target establishments to identify under-recording.

"Accurate and honest recordkeeping is vitally important to workers' health and safety," said acting Assistant Secretary of Labor for OSHA, Jordan Barab. "This information is not only used by OSHA to determine which workplaces to inspect, but it is an important tool employers and workers can use to identify health and safety problems in their workplaces."

While the program will focus on a select group of industries, all employers need to be aware of OSHA's increased emphasis on accurate recordkeeping. Now is the perfect time to review your company's records and ensure that everyone in the company knows the procedures to follow when someone is injured or becomes ill on the job.

Reporting Injuries and Illnesses

By law, companies must report injuries and illnesses that result in death, loss of consciousness, days away from work, restricted work activity or job transfer, or medical treatment beyond first aid. Under OSHA requirements, employers need to complete three different forms that relate to injuries and illnesses over the course of a year. Two of these must be filled out promptly after a work-related accident or illness, and one must be completed on an annual basis.

Form 300 is a log of work-related injuries and illnesses that must be kept at every site. On this form, employers must log all work-related illnesses and injuries, including the date and type of injury or illness, employee's name and job title, and where the event occurred.

Form 300A, the "Summary of Work-Related Injuries and Illnesses" must be completed at the beginning of every year and displayed from early February to the end of April. It consists of three parts:

Number of cases, including the total number of deaths, total number of cases with days away from work, total number of cases with job transfer or restriction, and total number of other recordable cases;

Total number of days away from work and the total number of cases with job transfer or restriction; and

Injury and illness types, including the total number of injuries, skin disorders, respiratory conditions, poisonings, hearing loss, and all other injuries.

Form 301, known as the "Injury and Illness Report," must be completed within seven days of a work-related incident. This form requires information about the employee, the name of the doctor who treated the employee, the type of treatment the employee needed, and an explanation of what was happening before and during the incident.

Despite requirements to fill out logs and records, many employers simply do not take the time to comply. In fact, some organizations offer incentives to those who don't report injuries and illnesses, while others actively discourage proper reporting.

OSHA has come under fire for overly optimistic reports of improved workplace safety rates in recent years. According to one study, employers' OSHA logs captured one-third of injuries and only 31 percent of illnesses. Other studies and news reports found similarly low levels of reporting. The U.S. Bureau of Labor Statistics has also found discrepancies in the number of illnesses and injuries it reports compared to other sources of information. The bureau has been investigating how the differences are occurring.

This type of bad publicity has raised Congressional scrutiny about the practices of OSHA, which is a division of the U.S. Department of Labor. At the request of the Senate Committee on Health, Education, Labor and Pensions and the House Committee on Education and Labor, the Government Accountability Office issued a study on the accuracy of employer injury and illness records. In 2009, Congress directed OSHA to initiate an enforcement initiative on recordkeeping – NEP is one result.

The New NEP

The new program is limited to certain companies in certain industries. According to OSHA, the under-recording of injuries and illnesses are most likely to occur at establishments with low rates of recorded injuries, but who operate in historically high-rate industries, including some construction companies.

While smaller companies will not be part of this NEP, those with 40 or more employees that have a certain Days Away, Restricted, or Transferred Rate (DART) should expect to be part of an inspection. During the inspections, OSHA officers will:

Compare the DART rate for 2007 against rates the employer has previously reported. If the rate is low enough, the officers will end the inspection immediately.

If the inspection does continue, OSHA officials will review the employer's 2007 employee roster, then pick several employee records to review. For companies with fewer than 100 employees, all records will be part of the review. Larger establishments will have a percentage of their records reviewed.

Review medical, workers' compensation, insurance, and payroll/absentee records. If available, officials will also review company safety incident reports, company first-aid logs, alternate duty rosters, disciplinary records that relate to injuries and illnesses, as well as off-site records.

Speak with the company's designated record keeper in order to discover whether any company policies may discourage injury and illness recordkeeping. Officials will ask employees if they have ever been encouraged to lie and say a work-related illness or injury occurred outside work. Management and health care professionals will be included in the inspection to find out how injuries and illnesses are recorded and whether incentives programs may influence how they are tracked.

Reconstruct log entries for employees and then compare them to the employer's logs.

Perform a limited review of the main plant areas to see if there are any obvious violations.

When they find violations, OSHA officials will follow standard procedures for issuing citations. The classifications of citations will depend on whether companies have been using incentive or disciplinary programs that could affect how injuries and illnesses are recorded. If the inspectors find that employers have been trying to improperly influence employees, a citation that may have qualified as "other-than-serious" would be changed to "serious" and a "serious" would be considered "willful."

The program is also taking a close look at ergonomics. If OSHA officials decide that a significant number of injuries and illnesses are ergonomic-related, a different DART rate will be used. If that rate is twice the industry rate or more, employees, management, and health care professionals will find themselves subject to extra questions. These include:

Have you ever called in sick due to pain from performing tasks at work?

Have you ever taken vacation days due to pain from performing tasks at work?

Do you take over-the-counter medication for an unreported work-related injury?

Do you know of anyone who has quit because of pain or injury? Who?

Do you know of anyone who has quit because the work tasks are too physically demanding? Who?

Are there specific departments, shifts or tasks that you know are more at risk for injury? If yes, which ones?

Employers should take the opportunity now to make sure their records are accurate and that no one in the company is trying to make those rates look better than they really are. Companies in the targeted industries should immediately begin working with their record keepers, managers and supervisors, human resources, and in-house and outside counsel to ensure that they will be able to pass an inspection if one takes place.

Companies currently outside the scope of this program should not relax, though. Beyond this NEP, OSHA is developing enforcement and quality assurance programs that will target other industries to ensure that their records are accurate. It's better to make sure everyone at the company understands the importance of properly recording illnesses and injuries before OSHA inspectors arrive to comb through the paperwork.

About the author:

Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Rick at (281) 833-2200 or ralaniz@alaniz-schraeder.com.